The absolute prohibition of torture, both as a matter of treaty law and international customary law, has been described as one of the ‘few issues on which international legal opinion is [most] clear’ and its transgressors rightfully identified as the ‘common enemies of mankind’. In SZTAL and SZTGM v Minister for Immigration and Border Protection  HCA 34 (SZTAL), the High Court of Australia recently had cause to consider the CAT, ICCPR, and other international legal materials regarding torture, in relation to Australia’s ‘complementary protection regime’ established through the Migration Act 1958 (Cth) (Migration Act).
There is no such thing as a funny dictatorship. This seemingly obvious point was highlighted with the death of Otto Warmbier, who was until recently imprisoned in North Korea. While Hollywood movies like Team America: World Police and The Interview have, from time to time, parodied the North Korean regime, Warmbier’s death is a stark reminder that this regime is not a joking matter.
Last year, the United Nations Special Rapporteur on Torture found that Australia’s offshore processing system of asylum seekers violates the international convention prohibiting torture.
On 11 August 2015, Senator Penny Wright of the Australian Greens put forward a formal motion in the Australian Senate moving that the Government be called on to ratify the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (Protocol).
The motion is available here on page 12.
Australia ratified the Convention Against Torture (Convention) in 1989 and the prohibitions contained in the Convention have been adopted in the Commonwealth Criminal Code. Whilst Australia signed the Protocol in 2009, it has not yet been ratified. Presently, 79 countries have ratified the Protocol, including the UK and New Zealand.
The Protocol would require Australia to allow visits by independent international and national bodies to places where people are deprived of their liberty in order to prevent torture and other cruel, inhuman or degrading treatment or punishment. In particular, Australia would be required to establish a National Preventative Mechanism (NPM) which would have, at minimum, the power to examine prisoners and detainees, make recommendations to national authorities and submit proposals with respect to Australian legislation.
Senator Wright’s motion provided at para (a)(iii) that:
the establishment of an NPM:
- had bipartisan support from the Joint Standing Committee on Treaties in 2009, and an implementation framework has been identified by the Australian Human Rights Commission,
- would help address serious allegations of cruel, inhuman and degrading treatment occurring in some prison facilities in Australia and immigration detention facilities in Nauru, and provide the required transparency to allow health care practitioners and legal advisors to attend to good professional and ethical conduct for clients in detention, and
- can also deliver improved workplace conditions for employees and efficiency dividends for the taxpayer.
The motion did not receive support from the Government or the Opposition. Labor Senator, Claire Moore, stated:
…we did deny formality to this important motion, because it is our longstanding practice. Where we have an issue such as this which is complex and creates a number of complex situations and also determines significant discussions across all states and territories, we believe it is not appropriate to use the notice of motion process for that, and that is our standard practice.
As to the status of Australia’s implementation of the Protocol, the Australian Human Rights Commission states on its website that:
The Commission understands that a proposal for ratifying the [Protocol] is under consideration by the Australian Government, and consultations are continuing with the states and territories on necessary steps to implement the obligations under [the Protocol].